Now that Michael Mukasey is no longer the Attorney General, he (or his high-level designee) doesn’t have to answer for what US District Judge Emmet Sullivan clearly sees as major shenanigans by the Public Integrity Section leading up to the October conviction of ex-Sen. Ted Stevens (R-Alaska) for lying on his financial disclosure forms.
On Wednesday, Sullivan vacated his Jan. 16 order that Mukasey file a statement with the court explaining who knew what when about whether FBI Agent Chad Joy had been granted protected whistleblower status. Joy made an explosive complaint of prosecutorial misconduct. Stevens has asked the court to throw out his conviction or order a new trial.
Instead of having the now-departed Mukasey answer for the prosecutors, Sullivan ordered the Department of Justice to file under seal all communications to, from, or between anyone in Public Integrity, the FBI, DOJ Office of Inspector General, DOJ Office of Professional Responsibility, and the US Attorney’s Office in Alaska about the matter.
Sullivan’s order revealed a partial transcript of what was said in a sealed Dec. 19, 2008 hearing. Sullivan grilled Public Integrity deputy chief Brenda Morris, the lead prosecutor on the case, about whether DOJ lawyers intentially mislead the court about the need to keep Agent Joy’s complaint sealed — over defense objections. The government lawyers initially argued that Joy’s privacy rights as a protected “whistleblower” mandated keeping his complaint secret. They later abruptly reversed course, saying the FBI agent actually didn’t have official whistleblower “status.”
SULLIVAN: “If you were a defense attorney, you’d be raising a storm about that information [in Joy's complaint] and you know it, don’t you? You can look me in the eye and tell me.”
MORRIS: “It’s not about looking in your eye and telling you or not, Judge … I’m biased in the situation.”
Agent Joy alleged in his complaint that prosecutors had concealed exculpatory information in an FBI Form 302 witness interview summary from the defense. He described a meeting in which Public Integrity attorney Nick Marsh was “absolutely against turning over” the new information to the defense. Morris in the Dec. 19 hearing gave a different version of that meeting. She said it was Marsh, in fact, who’d discovered the improper redactions and alerted his colleagues. Morris, Marsh, Public Integrity Section Chief William Welch and other government officials then held a meeting to discuss what to do, Morris told Sullivan.
“It was at least ten of us in the room going back and forth as to what is it and how best to deal with it,” Morris said. “So, I mean, Judge, just like that maybe his, Agent Joy’s recollection or his belief of what may have happened - I was present. I’m going to be a witness, too. Bill Welch, he’ll be a witness.” The government must turn over the material requested by Sullivan by Jan. 29.
